When injured in a car accident the lawsuit requires that claimants attend an examination for discovery. The examination for discovery is a process in which the injured person is asked questions under oath. The transcript of questions and answers can be used at trial to cross examine the claimant. Often the insurance company lawyer will try to arrange more than one examination although the rules only contemplate one. There usually has to be changes in the situation if the ICBC lawyer expects to conduct more than one examination for discovery.
Further Examination for Discovery in Personal Injury Cases
In cases where there were no questions left on the record or undue interruptions, further examination will not be permitted. The ICBC lawyer is however permitted full opportunity to conduct the examination.
Rule 7-2(2) does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.( See Humphrey v. McDonald, 2011 BCSC 1288)
If the Court finds that the request of the Defendants is not a second examination but rather a continuation, the Defendants must establish that they are entitled to continue the discovery regarding questions left on the record requiring the Plaintiff to inform herself ( see Li v. Oneil, 2013 BCSC 1449). There is no general requirement that a party re-attend at discovery if documents are produced after a discovery.
In Lewis v. Lewis, 2010 BCSC 1925 the defendants were also seeking an order that the claimant re-attend an examination for discovery. The claimant already had an examination for discovery and as the judge stated starting at paragraph 8 ,
“The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it….Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.”
Once an examination for discovery of a party has been concluded, there is a heavy onus on an applicant to justify a further examination for discovery as only one examination is contemplated. To meet this heavy onus, the applicant must demonstrate that the examinee failed to give the examiner the discovery to which he is entitled to.
If the first part of the test cannot be satisfied, then the applicant must demonstrate that the complexion of the case has changed materially as a result of the passage of time, new heads of damages are being advanced or significant intervening events have occurred since the first discovery which would materially alter either the prosecution of the case or the defence of it.
Continuation Examination for Discovery of the Plaintiff
A further discovery is not an opportunity to revisit ground already covered in the first Examination for Discovery. The principal of res judicata applies regarding the strict limits of a further examination for discovery.
Further discovery of the Plaintiff in the weeks before a trial will prejudice the Plaintiff. It is inappropriate for the Plaintiffs’ preparation for trial to be interfered with, at this very late stage, by the need for the Plaintiff to prepare himself for discovery, by his further discovery, and by the need to then address and respond to the inevitable outstanding requests for information that will ensue from is discovery. ( Concord Pacific Acquisitions Inc. v. Oei, 2018 BCSC 1368, para 41)
Always follow your lawyers advise when it comes to refusing to attend an examination for discovery.